NORM PATTIS: Darrow may not have been the saint some thought

Clarence Darrow is regarded by many as among the greatest trial lawyers in our nation's history. He defended the lives of Leopold and Loeb, accused of the thrill-killing of an affluent boy in Chicago. He defended labor leaders in disputes from one end of the nation to the other. He fought William Jennings Bryan in the world-changing dispute in Tennessee about whether evolution could be taught in public schools. He was the go-to lawyer for the damned and despised in the early twentieth century.

It is tempting to make a saint of him. But new evidence supports the conclusion that he himself may have been a sinner. By today's standards, his ability to practice law might have been taken away by bar regulators.

All lawyers are bound by Rules of Professional Conduct. To be admitted to the bar, to enjoy the privilege of appearing in the well of a court on behalf of others, one must subscribe to, and adhere to, ethical rules of professional conduct. Break them in an egregious manner, and your career ends.

How far was Clarence Darrow willing to go in support of his clients? The law requires a duty of zealous advocacy. We are required to make our client's cause our cause. Happy the lawyer whose role as advocate in a case or controversy corresponds with his own deeply held political and philosophic commitments.

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But lawyers also have a duty to the court. We owe it a duty of honesty, or, as the law puts it, we have a duty of candor toward the tribunal.

In other words, a lawyer wears two hats: he or she is both an advocate and an "officer of the court." What do lawyers do when they lose confidence in the courts?

Darrow was fond of saying such things as: "There is no such thing as justice - in or out of court;" and, "Justice has nothing to do with what goes on in a courtroom. Justice is what comes out of a courtroom." That sounds an awful lot like what might be called consequentialism, or gauging the worth, or value, of a thing by the result it produces.

There have long been suspicions that Darrow was more than willing to bend the law's inflexible rules to benefit a client. He twice stood trial for jury tampering in California, accused of bribing jurors in support of defense of the McNamara brothers, labor activists who firebombed the Los Angeles Times building in 1910, causing the death of 20 employees. In the first trial, a jury acquitted him as to the charges as to one juror; a second jury deadlocked as to the other juror. California agreed not to prosecute him a third time if he agreed never to take another case in that state. He left California in shame.

Dean Strang's new book, Worse Than The Devil: Anarchists, Clarence Darrow and Justice in a Time of Terror, (University of Wisconsin, 2013), sheds new, and troubling, light on another episode in Darrow's career. Did he conspire with prosecutors to alter an appellate record to provide relief to his clients in a Wisconsin case?

Ten men and one woman were convicted in Milwaukee, Wisconsin, in 1917. All were Italians living in the United States. They were charged with conspiracy to commit murder arising from an assault on police officers in the city's Bay View section.

Prosecutors pressed their case before a jury prone to convict Italians, suspected anarchists, and those opposed to Woodrow Wilson's alliances in what became World War I. The jury returned a quick verdict as to all 11 defendants, deliberating just 17 minutes.

Clarence Darrow was brought in to handle the appeal.

The Wisconsin Supreme Court vacated 9 of the 11 convictions, and let stand the 25 year sentence as to the two remaining defendants. Shortly thereafter, Darrow wrote to Wisconsin Governor John J. Blaine to request a pardon for these two. Surprisingly, the trial judge and the prosecutor joined in the request by way of a separate letter. The men's sentences were commuted.

It was a stunning end to a difficult case. How did Darrow do it?

A Wisconsin grand jury wondered the same thing, and investigated whether Darrow and the prosecutor obstructed justice by altering the appellate court record, or otherwise obstructing justice. Although no one was charged, Strang, who reports that he is the first to write on Darrow's role in this case based on access to the transcripts of these secret proceedings, makes a powerful case that Darrow tinkered with the machinery of justice. "At the very least," he writes, "there is solid evidence that [the prosecutor] and Darrow aspired - more, conspired - to corruption."

Why would the prosecution and defense work together? The conviction of the Bay View 11 was a cause celebre among anarchists. After the trial, the prosecutor's life was threatened by enraged anarchists. There were attempted bombings. He is believed to have sought a quid pro quo with Darrow: call off the anarchists, and I'll agree to fix the record on appeal so that the defendants' convictions can be reversed.

These are stunning accusations. Among the fixed points in a lawyer's firmament is the sacrosanct character of a trial record. A lawyer who tampers with one is much like a surgeon who spits into the open body of his patient. It is, by today's standards, and, I suspect by the standards prevalent in Wisconsin a century ago, beyond the pale.

No one was charged after the Wisconsin investigation, so there is no verdict to decide the issue, in so far as verdicts ever really decide an issue. But the circumstantial evidence recited by Strang more than suggests that Darrow, the great consequentialist, decided that he'd get justice out of court by any means possible.

It is a troubling black mark on the already tarnished legacy of a lawyer I admire more than any other.

I am not persuaded we do justice in court. The courts are a flawed institution. But for the life of me, I cannot endorse Darrow's apparent solution. Tampering with juries, obstructing justice - these things only make a bad situation worse. The rules, the fight, after all, are all we have.